Overdue justice for lead paint victims

Brian S. Brown

In the 1960s, Baltimore's leaders, driven by both desperate need and newfound vision, enacted a first-of-its-kind housing code for the City of Baltimore. Its provisions ensured that Baltimore's residents, including even the poorest, would be able to obtain, at a bare minimum, housing that was "fit for human habitation."

Of course, the slumlords reacted in the knee-jerk manner one would expect. (To be clear, most landlords are not slumlords. Instead, they follow the law and do their best to provide safe housing.) According to the slumlords, if a housing code were enacted, the costs of compliance would be too high, there would be no affordable housing for the economically deprived and landlords would flee the city. None of this came to be, and Baltimore became a model for the nation when it comes to the protection of children from the ravages of lead-paint poisoning.

Now, in a first-hand lesson in "history repeats itself," today's landlords are banging the drum in panicked reaction to the recent decision from the Maryland Court of Appeals invalidating the liability limits for lawbreaking landlords (slumlords) who fail to maintain their properties and cause children to have lifelong brain damage from lead poisoning. Let's look at some facts.

The 1994 Reduction of Lead Risk in Housing Act is a textbook example of legislation resulting from backroom dealing, to the exclusion of those who would be most affected by the new law. No tenant groups were represented, nor did advocates for the children who had already been lead-poisoned have an opportunity to contribute to the drafting of the law. In fact, these groups were deliberately excluded. Instead, slumlords rammed the legislation through and came out with an unbelievable deal. Reduced to its basics, the law immunizes slumlords from liability for causing permanent brain damage to a child — even if they break the law by failing to comply with the housing code. Pretty sweet deal if you can get it.

Because of the City Council's vision, Baltimore landlords were required to provide safe housing well before the passage of the 1994 act, and if there was a failure to comply with the code, landlords were subject to civil and criminal repercussions. While the updated law required landlords to register their properties and to provide tenants with certain educational materials, it provided only one other substantive new provision: It gave slumlords immunity from civil liability even if they break the law. In other words, even if the property falls out of compliance with the housing code, and even if a child becomes permanently brain-damaged from lead poisoning, a slumlord is exempt from civil liability.

No other business is protected in this manner. In every other instance, if a person or business negligently causes injury to another, they must compensate the injured party. Somehow, Maryland's landlords obtained an exception to this rule. In a true testament to our system of checks and balances, the Court of Appeals has now properly recognized that the Reduction of Lead Risk in Housing Act violates the Maryland Constitution's guarantee of a "right to a remedy" and invalidated its immunity provisions.

Landowners and other supporters of the 1994 act cite the decline in lead-poisoning cases as evidence that "the law is working." What they fail to acknowledge is that other jurisdictions with a similar statutory scheme but without slumlord immunity (such as New York, Massachusetts and Rhode Island) are seeing similar results. This is explained by demolition of older housing; stricter enforcement of existing housing codes, and yes, fear of civil liability.

In fact, there is no evidence of any cause-and-effect relationship between the 1994 act and lower rates of lead exposure. Further, there is no evidence that the landlords in those jurisdictions have fled the rental market due to a lack of immunity. Finally, landlords' claims of unavailability of insurance are also overblown. What they really mean is unavailability of "cheap" insurance. It is simply incorrect to state, as The Sun did in its recent editorial, that "insurance against lead paint claims is not available since the law went into effect 15 years ago." Indeed, there are a number of landlords who continued to maintain liability insurance for lead claims long after the act took effect.

The Court of Appeals' ruling leaves intact the statute's registration mandate and other requirements. This is a good thing, and adds to the protections provided Baltimore's already comprehensive housing code. As the slumlords invented a crisis in the 1960s, so too are they inventing a crisis today. And, as we learned then, we will see again today that there is no crisis.

Like the rest of us, landlords need to comply with the law. If they do so, there is nothing to fear. In a civil society, none of us are "immune" from this responsibility — nor should we be.

Brian S. Brown, an attorney in Baltimore, argued on behalf of the plaintiff at the Maryland Court of Appeals in the case that gave rise to the ruling discussed in this article. His email is brian@kerpelman.com.